Digital era subverts suppression

The naming in Australia this week of a high-profile Otago
man whose identity was suppressed in the Dunedin District
Court earlier this year - when he was discharged without
conviction on an indecency charge - raises questions about
the effectiveness of such court orders in the internet age.
Timothy Brown reports.

The difficulty of maintaining suppression orders in the
digital age has been highlighted by the publication in
Australia this week of the suppressed name of a prominent
Otago man, a legal expert says.

University of Otago dean of law Prof Mark Henaghan says
without reciprocal suppression orders between countries,
maintaining name suppression across national borders is
almost impossible.

''I don't see how we can enforce our suppression orders in
foreign countries,'' he said.

Rodney Hide

His comments came after the man, discharged without
conviction in the Dunedin District Court on an indecency charge
in March, was named by an Australian blogger earlier this week
- despite a permanent suppression order preventing the
publication of the man's name, occupation and former
occupations, anything likely to lead to his identity, or cast
speculation on any other person of a similar class or type.

The suppression order was granted by Judge David Saunders
because publication of the man's identity would cause ''undue
consequences'' for him.

The man had earlier pleaded guilty to a charge of performing
an indecent act intended to insult or offend a woman, later
saying that he did so in the belief he would be discharged
without conviction and granted final suppression of name.
Both applications were declined.

Subsequently the man appealed to the Court of Appeal, saying
he had not committed the offence, and that he had pleaded
guilty as a pragmatic step to avoid a trial. The Court of
Appeal referred the matter back to the Dunedin District Court
for the man to stand trial.

The man subsequently sought a sentencing indication from
Judge Saunders, who agreed to a discharge without conviction,
on payment of $6500 reparation to the female complainant. He
ordered final name suppression. The Crown, which had
previously opposed suppression, offered no opposition.

Maggie Barry

The Australian blogger this week posted details of the
man - including his name, former occupations and details of his
offending - on his blog with the proviso: ''WARNING: It is
illegal for this editorial to be accessed by New Zealand
readers because of suppression orders in that country''.

Prof Henaghan said New Zealanders would not breach the
suppression by reading the post, as it was the publisher who
breached the order.

However, the situation showed the difficulty of enforcing
suppression orders in the modern age and across borders.

The publication of the New Zealander's details came after
former Epsom MP Rodney Hide publicly goaded National MP
Maggie Barry in an article in the Herald on Sunday.

''Name the sexual predator under [parliamentary] privilege
and enable other possible victims to come forward. Some of
your colleagues know who he is. Ask them. Or me,'' Mr Hide
wrote.

Mr Hide's article came after Ms Barry revealed she had been
assaulted by convicted sex offender Rolf Harris and said she
would support other victims in coming forward.

But Prof Henaghan warned MPs could still be held in contempt
of court and using parliamentary privilege to reveal the
man's name would ''make a mockery of the courts''.

''I would see it as an abuse of that privilege. It would
undermine the courts totally.''

Since the Australian blogger posted details of the New
Zealander, the information has been published elsewhere on
the internet, including Wikipedia and Facebook.

Prof Henaghan said the complexities of digital media meant
the only way such situations could be avoided was with
reciprocal suppression order arrangements with other
countries.

''What we have got to have is better enforcement
mechanisms,'' he said.

The man's lawyer could encourage prosecution of those who had
breached the suppression order in New Zealand and ''minimise
the damage'', Prof Henaghan said.

''But he can't bring the name back in now that it's out
there. You can't readily expunge what's in people's minds.''

Reciprocal arrangements already existed in other areas of
law, such as debt enforcement and parenting orders, he said.

''I think suppression orders still have a place in law,''
Prof Henaghan said.

''They are there for good reason, but once it becomes that
they can't be enforced, that's when it becomes harder to take
them seriously.''

Justice Minister Judith Collins said no such arrangements
related to suppression existed between New Zealand and
Australia at present.

''Given the extensive use of email and the internet, it is
increasingly difficult to control digital information in a
digital age,'' she said.

''The Minister of Justice regularly meets with her Australian
counterparts to discuss mutual issues concerning the
administration of justice and it can be expected that this
issue will need to be considered in future. However, this is
not yet part of the current work programme.''

The number of suppression orders granted in the district
court had dropped to 300 during the past financial year
compared with 539 in the 2011-12 financial year, she said.

Prof Henaghan said the case also raised the issue of the
appropriateness of one's prominence being used as a
justification for suppression.

''It's a hard one to justify,'' he conceded.

''I think it's important to have a public debate and see if
people think it's appropriate.''